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Mohamed Mohamud (second from right) sits with his defense team in January 2013 during his trial in Portland. Mohamud's attorneys now are saying the government is using "vauge and contradictory arguments" to downplay some of the methods it used to gather evidence against Mohamud.
(Deborah Marble)

The government is using vague and contradictory arguments to downplay its failure to disclose long ago that it used information from warrantless wiretaps overseas in its Mohamed Mohamud investigation, lawyers for the convicted would-be bomber said.

The government did not admit until last November -- eight months after Mohamud's terrorism trial – that it derived information under an amendment to the Foreign Intelligence Surveillance Act that allows eavesdropping of foreign and U.S. targets overseas.

That admission constitutes new evidence of the government's conduct and is especially relevant considering Mohamud's entrapment defense, the lawyers said in their pleading, filed on Thursday.

Mohamud was convicted last January of trying to set off a bomb at the 2010 Pioneer Square tree-lighting ceremony. The bomb was a hoax device provided to him by undercover agents, posing as Al Qaeda operatives, who befriended him.

The filing comes as the defense is seeking access to internal government documents related to surveillance of Mohamud, including when it began and how he came to their attention.

Among other documents, the defense is seeking information about any policy the government might have about not disclosing the use of the warrantless wiretaps overseas and communications regarding the decision to ultimately issue the notice. They ask for documents showing who knew that the investigation included intelligence derived from overseas electronic surveillance as well as who was involved in a decision to not provide the notice.

"Who knew what when?," the filing states. "Those questions have never been answered."

In arguing for access to government information, the defense noted that a national discussion is taking place, questioning whether the government's intelligence gathering methods lack sufficient oversight. The filing cites a recent news story involving a student who was placed on the secret No-Fly List due to a clerical error as well as concerns raised by a former Foreign Intelligence Surveillance Court judge about FISA processes' one-sided nature.

There is a need for "informed advocacy," the filing states. "Nobody suggests that the role of a criminal defense attorney should be abolished by entrusting the prosecutor to tell the court both sides of the story."

The lawyers also point out that the government's pleadings suggest that even the judge was not informed that some of the intelligence in the investigation resulted from overseas wiretaps.

That omission could have affected how U.S. District Judge Garr King ruled on the defense's challenge to other evidence obtained through surveillance methods. The defense has separately asked the court to order the government to turn over classified information relating to the overseas electronic surveillance for its own private review.